Published tribunal order
Tenancy Tribunal case 5537716 — Rent arrears at 56D Galway Street, Onehunga, Auckland 1061
Decided 3 Aug 2026 · Published 3 Aug 2026 · Application 5537716
- Rent arrears
Order
- [The tenant/s] tenant/s], [The tenant/s] tenant/s] and [The tenant/s] tenant/s] must pay Gramax Property Management Limited As Agent For S Point Living Limited $1221.43 being rent arrears from 18 June 2026 to 26 June 2026.
- [The tenant/s] tenant/s] and [The tenant/s] tenant/s] are not liable for rent arrears from 27 June 2026.
- [The tenant/s] tenant/s] must pay Gramax Property Management Limited As Agent For S Point Living Limited $2,856.57 being: a. rent arrears of $2828.57 for the period 27 June 2026 to 29 July 2026. b. the filing fee of $28.
Reasons
- All parties attended the hearing remotely.
- The landlord has applied for rent arrears and an order in the nature of a declaration as to who the current tenants are under the tenancy agreement and who is liable for rent and the rent arrears.
- The tenancy commenced on 24 April 2025 and was a fixed-term tenancy with a contractual end date of 23 April 2026 .
- The tenants on the tenancy agreement were [The tenant/s] tenant/s] (Mr Frere), [The tenant/s] tenant/s] (Mr Kalolo) and [The tenant/s] tenant/s] (Mr Hardiman)
- A Tenancy Renewal agreement was signed by the three tenants on 26 February 2026 renewing the fixed-term to 23 April 2027.
- The landlord says on 3 June 2026 Mr Frere and Mr Hardiman confirmed they intended to leave the tenancy. The landlord explained that one option was new tenants could replace Mr Frere and Mr Hardiman. The tenant’s agreed to this approach. Two replacement tenants were found, and they passed reference and credit checks. The replacement tenants signed the change of tenant forms sent to them by the landlord on 25 July 2026. The landlord says the replacement tenants moved in for 2 days and on 29 July 2026 advised they wish to withdraw from the change of tenant process.
- The landlord seeks rent arrears from the three tenants on the basis they all remain jointly and severally liable under the tenancy agreement and renewal.
- Mr Frere moved out of the premises on 8 June 2026, he says after giving Mr Kalolo notice, which he says was accepted by Mr Kalolo. Mr Frere considers he should not be liable for rent from 18 June 2026 (when the rent arrears began to accumulate) as Mr Kalolo agreed to be responsible for the rent from that date.
- Mr Hardiman moved out of the premises on 14 June 2026 after giving notice to Mr Kalolo who he says accepted that notice. Mr Hardiman echo’s the submissions of Mr Frere.
- Mr Kalolo says it was made clear to Mr Frere and Mr Hardiman that they would remain liable for the rent to the landlord until replacement tenants were found. He says he has been trying to find replacement tenants and has now found three replacement tenants who will move in over August 2026. The issues
- The issues I must determine are: a. How much is owed for rent? b. Who is liable for the rent arrears? c. Who is liable for the rent moving forward? Relevant law
- The relevant law that applies is found in the Residential Tenancies Act 1986 (RTA).
- With any claim before the Tenancy Tribunal, the Tribunal applies the usual civil law standards and expectations. That includes a requirement that the applicant establish their claims on the balance of probabilities. The balance of probabilities means more likely than un-likely, or in mathematical terms, has a fractionally more than 50% likelihood. The Tribunal does not need to be certain or very sure about any claim, only that what is claimed is likely. This obligation carried by the applicant is referred to as the “burden of proof”. Independent witnesses, corroborating documents and photographs are an important part of discharging this burden. As noted by the District Court in Kaipo v Clarke & McCarthy 1 , in practical terms this means that: • ... “[L]ike anyone who brings an application before a Tribunal or Court, it is incumbent upon the applicant to provide the evidence necessary to prove the case. If the applicant fails to do that, then their application will be dismissed whether it has merit or not because it is up to the applicant to provide the necessary evidence. It is not up to the other parties, and it is certainly not up to the Tribunal to extract evidence.”
- In deciding any particular claim, I must consider all the evidence presented (including oral evidence during the hearing). I must weigh this evidence to decide what is more likely.
- The relevant law is found in the Residential Tenancies Act 1986 (RTA).
- The tenant must pay the rent as and when it is due and payable under the tenancy agreement. 2
- Section 13B of the RTA says • Variations and renewals of tenancy agreements • (1) Every variation of a tenancy agreement, and every renewal of a tenancy agreement, shall be in writing and signed by both the landlord and the tenant. • (2) The landlord shall, before the date on which the variation or renewal of the tenancy is to take effect, provide the tenant with a copy of the variation or renewal.
- Section 13C of the RTA says: • Tenancy agreements not unenforceable on grounds not in writing • Notwithstanding anything to the contrary in any other enactment, no tenancy agreement, or variation or renewal of a tenancy 1 Kaipo v Clarke & McCarthy (DC) TT233/02. 2 RTA, 40 (1)(a). agreement, shall be unenforceable on the grounds that it is not in writing.
How much is owed for rent?
- The landlord provided rent records which prove the amount owing as at 29 July 2026 is $4,050.
Who is liable for the rent arrears?
- There has, to date, been ongoing discussion with a number of replacement tenants, however no written variation of the tenancy agreement has been fully executed by the landlord, replacement tenant/s, remaining tenant and departing tenants.
- However, clause 31 of the tenancy agreement applies. It states • If the tenant would like to move out before the fixed-term tenancy ends, and the landlord accepts the lease breach. The landlord will charge a fee for ending the fixed-term early. These fees would be the actual and reasonable costs. For example, the cost to advertise for new tenants, property manager's hourly rate, credit check fee, petrol cost, etc. Meanwhile, the tenant(s) has/have to be responsible for the rent payment until the start of the replacement tenancy or the end of the fixed-term tenancy, whichever is sooner.
- Mr Kalolo proposed two people as replacement tenants to the landlord, the landlord approved the replacement tenant’s and sent them the change of tenants forms. Both replacement tenants signed the change of tenant’s forms and provided the signed change of tenants form to the landlord. The replacement tenants moved into the premises; therefore, I consider the replacement tenancy did start and Mr Frere and Mr Hardiman ceased being responsible for rent from 27 June 2026, being the date I assess the replacement tenants tenancy commenced.
- While not expressly raised by the landlord at the hearing I note clause 33 of the tenancy agreement states: • The first two tenants on this tenancy are the head tenants for this property. They will be responsible for the rent payment and taking care of the property no matter the changes of any other tenants.
- This provision relates to Mr Frere and Mr Kalolo. I consider such a provision is harsh and unconscionable and decline to enforce this clause. Only a tenant is liable for rent under a tenancy agreement, and when a change of tenant’s results from a variation to the tenancy agreement the previous tenant ceases to be liable as a tenant. I consider it would be unfair to hold previous tenants liable for rent arrears when they cease to be a tenant and are replaced by subsequent tenants as provided for in clause 31 of the tenancy agreement. I consider this approach reflects the provision of the RTA that requires the Tribunal to exercise its jurisdiction in a manner that is most likely to ensure the fair and expeditious resolution of disputes between landlords and tenants and to determine each dispute according to the general principles of the law relating to the matter and the substantial merits and justice of the case, but it is not bound to give effect to strict legal rights or obligations or to legal forms or technicalities. 3
Who is liable for the rent moving forward?
- For the reasons outlined above, Mr Kalolo remains liable for the obligations under the tenancy agreement, including paying rent. I consider Mr Frere and Mr Hardiman are not responsible for rent from 27 June 2026
- I record that I have made no determination about the liability of the replacement tenants. They have not been served with the claim and the landlord has not chosen to pursue them for rent arrears. Filing fee
- Because the landlord has been successful in their claim, the Tribunal must order that the tenant’s pay the landlord the filing fee paid for the application. I consider Mr Kalolo should be liable for the filing fee as I have found him liable for the greater amount of the rent arrears. 4 Suppression
- The Tribunal must, on the application of a party that has wholly or substantially succeeded in proceedings, order that the party’s name or identifying particulars not be published, unless the Tribunal considers that publication is in the public interest or is justified because of the party’s conduct or any other circumstances of the case. 5
- The Tribunal may, on the application of any party to proceedings or on its own initiative, having regard to the interests of the parties and to the public interest, order that all or part of the evidence given or the name or any identifying 3 Section 85 of the RTA 4 See section 102 (4)(a) of the RTA. 5 RTA, s 95A (1). particulars of any witness or party not be published and may attach any conditions to that order the Tribunal considers appropriate. 6
- The landlord did not seek name suppression. Mr Frere and Mr Hardiman did not seek name suppression.
- Mr Kalolo sought name suppression. I decline to suppress Mr Kalolo’s name given the level of rent arrears and he has been unsuccessful in his position in this matter. I consider the public interest in publication outweighs Mr Kalolo’s personal interests.